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2 the ambiguous Standing of Suffering in Negligence Law Gregory C. Keating “If we had a keen vision and feeling of all ordinary human life, it would be like hearing the grass grow and the squirrel’s heart beat and we should die of that roar which lies on the other side of silence.” —George Eliot, Middlemarch Robert Cover’s essay “Violence and the Word”shatters a soothing fantasy.1 We surrender willingly to the seductions of the law’s intellectual intricacy and difficulty.The interpretation of legal texts acquires the allure of an Olympics of the mind.We succumb to the exhilaration of intellectual exertion and the glories of deep collective self-understanding and self-constitution.“Violence and the Word” rudely awakens us to reality and responsibility. “Legal interpretation,”Cover begins,“takes place in a field of pain and death.”2 Poetry “makes nothing happen” and “survives only in the valley of its saying ,”3 but law deals out death and suffering. Every page of “Violence and the Word”reminds us that acts of legal interpretation authorize the state to deal out punishment and pain.The machinery of legal interpretation is the beating heart of the state’s monopoly on the legitimate use of violence and authority. Behind the executioner stands the judge and behind the judge stands the law. Legal interpretation says what the law is. If the law is violence legitimated, legal interpretation is the engine of law’s violence. “Violence and the Word” thus reminds us that even the most exalted exercises of hermeneutic skill ultimately govern the measured brutality of prisons and executions. With this reminder, Cover puts criminal law and the state’s affirmative dealing out of pain and punishment on center stage. This is hardly wrong. Indeed, the message of “Violence and the Word” is powerful and persuasive to the point of being hard to take. But not all law stands in this particular relation to pain and suffering, and not all law legitimates particular inflictions of pain and suffering by authorizing the state to act.Tort law, for example, stands in a fundamentally different relation to the infliction of suffering.Tort’s particular preoccupation is harm—physical harm,mostly—and tort law is most salient when it obligates us not to harm The Ambiguous Standing of Suffering 79 one another.Tort law is an ancient legal device through which we may call others to account for the harm they inflict on us; it authorizes private persons to enlist the aid of the state in demanding redress from those who have wronged them. Tort suits and tort judgments no doubt bring a measure of misery to those who suffer them, but this suffering is the negation of other suffering, and it promises to forestall more suffering.Tort law, therefore, legitimates suffering most clearly not when it speaks, but when it is silent.Tort tacitly authorizes the infliction of suffering when it declines to count something as a form of harm that we are obligated to avoid inflicting on one another .Tort’s domain and character are constituted as much by the pain and suffering that they ignore as they are by the pain and suffering that they address. My aim in this chapter is to explore one example of the way that tort law—by its absence and its silence—authorizes the private infliction of pain and suffering. Tort’s recent struggles to address and redress emotional distress are at bottom struggles with the significance of suffering. Although these struggles are rightly seen as an attempt to expand the law’s protections against devastating emotional harm, the two most salient lessons that emerge from the recent history of the law are first, that tort must license the infliction of quite a bit of devastating emotional harm,and second,that tort never insists that people have obligations of care founded solely on the prospect that their conduct will inflict emotional anguish on others.By refusing to impose such an obligation, the law deals out pain and suffering not by its presence, but by its absence. Just what we should make of the law’s decision to forbear is a difficult moral and legal question. On the one hand, it seems right to suppose that tort law must authorize the infliction of a great deal of emotional anguish; the alternative might be nothing less than bringing life as we know it to a grinding halt. On the other hand, the flip side of that truth...

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